The Federal Election Commission (FEC) will not be creating any new regulations to address contribution disclosure requirements connected to electioneering communications, at least on its own accord.

Yesterday, the Commission was unable to achieve the requisite four votes needed to initiate rulingmaking in response to a federal court order. In Center for Individual Freedom v. Van Hollen, the U.S. Court of Appeals for the District of Columbia Circuit ordered the FEC, under the jurisdiction of the District Court, to decide whether the Commission would pursue rulemaking addressing the issues raised concerning 11 C.F.R. §104.20(c)(9) or defend its current regulation in court.

Currently, 11 C.F.R. §104.20(c)(9) requires disclosure only of those making contributions over $1,000 to an entity explicitly for the purpose of furthering electioneering communications. The lawsuit argues the current rule contradicts the statute requiring disclosure of all donors making contributions over $1,000.

The FEC counsel has filed a status report advising the District Court that the Commission “does not intend to pursue a rulemaking and that it will continue to defend 11 C.F.R. § 104.20(c)(9) before the Court.”

Separate statements have been issued by Commissioners Ellen L. Weintraub, Cynthia L. Bauerly, and Steven T. Walther .

National:

Selling Votes is Common Type of Election Fraud

Federal:

For Election Losers, Many Paths through the Political Wilderness

Medical Research Funding Tied to Advocacy, Study Finds

From the States and Municipalities:

Arkansas

Americans for Prosperity Puts Big Money on Legislative Races in Arkansas

Illinois

Emanuel Replaces Ethics Board

Maine

Supreme Court Won’t Hear Appeal by Anti-Gay Marriage in Maine Case

Massachusetts

Native Americans Chafe at Brown-Warren Race

Minnesota

Campaign Finance Board Rules Minnesota Majority’s Dan McGrath Did Not Break Lobbying Rules

Montana

Judge Tosses Montana Campaign Finance Limits

Nevada

Nevada Secretary of State Seeks More Campaign Disclosure, Restrictions in Aurora Act

Oregon

Oregon Supreme Court Refuses to Limit Campaign Spending

Pennsylvania

Pennsylvania Voter ID Law Shouldn’t Be Enforced This Time, Judge Rules

Rhode Island

Ethics Commission Sets Hearing on Disclosure of Paid Trips for Officials

State and Federal Communications produces a weekly summary of national news, offering more than 80 articles per week focused on ethics, lobbying, and campaign finance.

News You Can Use is a news service provided at no charge only to clients of our online Executive Source Guides, or ALERTS™ consulting clients.

Campaign Finance

“Campaign Fundraisers in D.C. Continue Despite Recess” by Kate Ackley in Roll Call.

New York: “Campaign finance reform uncertain” by Jimmy Vielkind in the Albany Times Union.

Lobbying

“US Rep. Frank: No paid lobbying after Congress” by The Associated Press in the Boston Globe.

Ethics

“SC lawmakers vow ethics reform” by Andrew Shain in The State.

Campaigns and Elections

“5 takeaways from the Denver debate” by Maggie Haberman in Politico.

A Federal Court has ruled Montana’s contribution limits are unconstitutional under the First Amendment.

On October 3, 2012, the U.S. District Court for the District of Montana, issuing a decision in Lair v. Murry, found the contribution limits in Montana Code Annotated §13-37-216 “prevent candidates from ‘amassing the resources necessary for effective campaign advocacy.’”

The Court has enjoined the state from enforcing the provisions of the code relating to limiting political contributions.

Montana Attorney General Steve Bullock issued the following statement: “In declaring our campaign contribution limits unconstitutional, a federal judge has effectively put Montana’s elections up for auction to the highest bidder. My office will aggressively pursue all legal remedies available to overturn this decision, including filing an emergency stay before the U.S. 9th Circuit of Appeals —the court which upheld Montana’s contribution limits just a decade ago.”

October 11, 2012   WASRG Summit, Washington, D.C.

November 17-20, 2012   SGAC Leaders’ Policy Conference, Santa Monica, California

November 28-30, 2012   ALEC States and Nation Policy Summit, Washington, D.C.

Q. I am interested in making contributions to state candidates in the upcoming elections. Does the fact that I’m a registered lobbyist affect my ability to contribute?

A. In certain states, being a registered lobbyist does impact your ability to give to a political candidate, ranging from a total ban on political activity, to simply having to report the contributions on your periodic reports.

In Arizona, Colorado, Iowa, Kansas, New Mexico, and Oklahoma, lobbyists may not make contributions to lawmakers while the state legislature is in session. Fortunately, in the context of the upcoming elections, most states have adjourned sine die. In California, a lobbyist may not make a contribution to a candidate for any office for which the person is registered to lobby. Because most lobbyists are registered to communicate with the legislature, this ends up being nearly a total ban on contributions to legislators. Similarly, in Kentucky, a lobbyist registered with the legislative branch may not make a contribution to a lawmaker. In Alaska, a lobbyist is only allowed to contribute to candidates for office within his or her voting district.

There are several states in which lobbyists are allowed to make contributions, but must disclose the donations on their lobbyist reports. Massachusetts, New Hampshire, New Mexico, Rhode Island, and Washington are examples.

Some states have unique provisions for politically-active lobbyists. In Pennsylvania, for instance, a lobbyist who makes political contributions must register and report in the same manner as PACs. Minnesota lobbyists must include their registration numbers in the memo section of campaign contribution checks.

If you or a member of your team would like to make a campaign contribution in a state in which you are registered, please contact a member of the State and Federal Communications Compliance Department for fact-specific guidance.

(We are always available to answer questions from clients that are specific to your needs, and we encourage you to continue to call or e-mail us with questions about your particular company or organization. As always, we will confidentially and directly provide answers or information you need.) Our replies to your questions are not legal advice. Instead, these replies represent our analysis of laws, rules, and regulations.

Campaign Finance

“Freshmen rake in cash through PACs” by Kevin Bogardus and Megan R. Wilson in The Hill.

Connecticut: “When a candidate’s spouse is powerful, the goal of a campaign donation can be … complicated” by Ana Radelot in the CT Mirror.

Minnesota: “Campaign finance board rules Minnesota Majority’s Dan McGrath did not break lobbying rules” by Paul Demko in Politics in Minnesota.

New York: “NY progressives push for public campaign finances” by Michael Gormley in Bloomberg News.

New York: “Campaign finance firepower gathers” by Jimmy Vielkind in the Capitol Confidential.

Lobbying

“Activists Press Corporations to Cut Ties With Presidential Debate Commission” by Janie Lorber in Roll Call.

“Wis. lawmakers sued over emails with conservative group” by The Associated Press in the Chicago Tribune.

Ethics

California: “L.A. Councilman Richard Alarcon and wife ordered to stand trial” by Catherine Saillant in the Los Angeles Times.

Illinois: “Emanuel Revamps City Hall Ethics Board” by Hal Dardick in the Chicago Tribune.

Campaigns and elections

“Obama, on track to raise $1 billion, came close to that in 2008”  by Matea Gold in the Los Angeles Times.

“Jim Lehrer on criticism of his recurring debate-moderator role: ‘It’s a rough, rough world’” by Andrew Beaujon in Poynter.org.

“Daily Ad Track” by Abby Livingston in Roll Call.

“Zac Efron, Leonardo DiCaprio and Selena Gomez all want you to vote for stuff” by Jen Chaney in the Washington Post.

Government Tech and Social Media

“For the Campaigns, Online Debate Response is All About Mobile” by Nick Judd in TechPresident.

“Social media: On the outside looking in at presidential debates” in Politics in Minnesota.

“Code for America Reveals 2013 Partner Cities and Counties” by Sarah Rich in Government Technology.

Nevada Secretary of State Ross Miller has proposed a bill draft resolution for the 2013 legislature to increase the accountability of candidates and public officials.

Secretary Miller advocates changes to the current campaign finance laws to clarify who is required to disclose contributions and expenditures when making independent expenditures or electioneering communications. Other changes put forth include requiring reporting within 72 hours for contributions received in excess of $1000, allowing the Secretary of State’s office to seek greater authority and greater penalties for campaign finance violations, and requiring every expense made from a candidate’s campaign account to be report.

Additionally, the Secretary is proposing an overhaul of the law regarding gifts given to public officials in order to “significantly restrict the ability of candidates and public officials to receive ‘gifts’ from donors who may pose a conflict of interest”, according to a press release from the Secretary’s office.

Assemblymen Marcus Conklin and Pat Hickey, and senate candidate Sheila Leslie, have expressed interest in the ideas. The Nevada Legislature is scheduled to begin its next session on February 4, 2013.

A federal judge has issued an order to the state supreme court seeking clarification of the state’s campaign finance laws. The order arises from a suit filed against the secretary of state by the Coalition for Secular Government (CSG), alleging that certain provisions of the Fair Campaign Practices Act are invalid under the First Amendment. CSG plans to raise funds that will go toward updating and disseminating a policy paper that may address ballot issues, activities that may require it to register as an issue committee and disclose its donors under Colorado law.

The judge requested the Colorado Supreme Court to clarify:

• Whether the position paper expressly advocates for a ballot issue or question such that it falls within the definition of expenditure in the Colorado Constitution;

• If it does qualify as a ballot issue expenditure, is it eligible for the exemptions allowed for news items, editorials, and other similar writings;

• Whether the policy paper is a “written or broadcast communication” that would categorize CSG as an issue committee, and if not, did it become one when CSG posted the paper to its blog or Facebook page; and

• What the monetary threshold is that would require an issue committee to register.

With the November elections on the horizon, a number of lawsuits have been filed by potential campaign contributors seeking to determine the constitutionality of their states’ campaign finance laws. The following states have seen campaign finance laws invalidated in August.

In Nebraska, the state supreme court held the Campaign Finance Limitation Act (CFLA) unconstitutional. The CFLA allowed candidates participating in the public financing program to receive additional public funds if their privately-funded opponents exceeded certain spending limits. The court also struck down the CFLA’s aggregate contribution limits and rules governing acceptance of contributions from independent groups after the court determined the public financing portion of the CFLA was not severable from the rest of the law.

The Sixth Circuit Court of Appeals ruled Ohio’s ban on political contributions to candidates for state attorney general or county prosecutor from doctors who treat Medicaid patients unconstitutional. The provision was designed to prevent fraud by banning contributions to those officials who prosecute Medicaid fraud, but the court held the prohibition a violation of doctors’ free speech rights.

In Florida, a federal judge issued a temporary injunction blocking enforcement of Florida’s $100 per election contribution limit for persons 17 and under, holding the law an unconstitutional infringement on free speech rights. Florida allows persons aged 18 and over to contribute $500 per election.

A federal judge in West Virginia granted a preliminary injunction to prevent enforcement of West Virginia’s $1,000-per-election limit on contributions to independent expenditure PACs, on the grounds that the limit chills First Amendment free speech rights. The injunction will remain in place pending a final resolution of the case.

Finally, in Colorado, a federal judge invalidated several campaign finance rule changes made by the secretary of state. The rules struck down include one providing that organizations are only subject to reporting requirements if more than 30 percent of their spending was for or against a ballot issue, and one limiting penalties for certain campaign finance violations. The secretary of state’s rule defining electioneering communications was upheld. Two additional rules await a decision.

I first voted in the 1976 Presidential Election—Jimmy Carter vs. Gerald Ford—and have voted in every Presidential election since. In fact, I only missed voting in one election in 1979 when I was in college and did not mail my absentee ballot.

I have not questioned whether I should vote…I just always made sure I did and I made sure I understood the issues and candidates.

So, what am I getting to this month? I want you to vote. Maybe I did not say it correctly. I WANT YOU TO VOTE.

I am not going to go Howard Beale (Movie: Network, 1976). But, I do want you—this country needs you—to study the issues and candidates in your states and cities and review the candidates running for U.S. President between now and November 5th. Get a good night’s sleep and then wake up on November 6th and VOTE, as if your life depended on it.

If you have questions about who is running in the states, check out the State Elections Guide on our website, www.stateandfed.com. We partnered with Stateside Associates to prepare a state-by-state guide on candidates, polling, and contribution guidelines.

Until next month, study the issues. Study the candidates. Study…and be ready to VOTE.

With the presidential and vice presidential debates coming, the news outlets are pulling up all kinds of footage of key moments from debates of the past. You can see bits of the Kennedy/Nixon debate, rediscover the best verbal zaps from Ronald Reagan, and choose your own favorite gaffes that candidates have made. Don’t miss Sen. Lloyd Bentsen telling Sen. Dan Quayle, “You’re no Jack Kennedy.” Have fun with these…

“Will You Smile or Cringe? It Depends.” by Leslye Davis, Jon Huang and Alexis Mainland in The New York Times.

“Presidential Debate Moments” video montage by David Frank in The New York Times.

“The Goofs and Gaffes in Presidential Debates” by Albert R. Hunt in The New York Times.

“The mistakes candidates make in debates” by Julian Zelizer in CNN Opinion.

“Top 8 Debate Zingers” by Sophie Quinton in National Journal.

“Debate ‘zingers’ over the years” by Bill Lambrecht in the St. Louis Post-Dispatch.

“Ten most memorable moments from presidential debates” in the San Francisco Chronicle’s Politics Blog.

Lobbying

Via Eric Brown’s Political Activity Law blog – Missouri:“Mo. Sen. candidate wants ban on all lobbyist gifts to state lawmakers” by Marshall Griffin in St. Louis Public Radio.

Wisconsin: “Former Assembly speaker now a lobbyist” by Jason Stein in the Milwaukee Journal Sentinel.

Campaign Finance

“Rules of the Game: Shining a Light on Political ‘Dark Money‘” by Eliza Newlin Carney in Roll Call.

Arizona: “Probe into Horne’s campaign finances leads to report over alleged hit-and-run” by Howard Fischer in the East Valley Tribune.

Social Media

“Mashable Special Report: How Digital Is Transforming Politics” by Josh Catone in Mashable.

“How the Internet will Change the Government” by Henry Brown in Govloop.

Your favorite movie about politics or business?

I really liked All the President’s Men because of the history it presented. I liked Wall Street, which showed me how bad it could be if I wanted to be a mean businessperson, so I am trying to do the opposite. I work for the good guys.

Books that influenced your understanding of the work you do?

PAC Power: Inside the World of Political Action Committees, by Larry J. Sabato, and Politics and Money: The New Road to Corruption, by Elizabeth Drew. I read them when I was first getting started in this profession and I wanted to learn more about PACs. They gave me a good foundation in how this world works.

A president you admire?

I could say something safe like George Washington, but I really admire Bill Clinton. I was living by myself in Alexandria, Va., when he gave his acceptance speech. I loved what he said about believing in hope. I remember jumping up and down in my apartment screaming with approval. I also admire what he accomplished. I like what he did to reform welfare. Thanks to programs his administration established, I was able to sell my house in Alexandria and buy one back in Ohio. I was able to sell the house in Alexandria to a woman who was getting off welfare. She was able to buy it for $2,000 down. I was thrilled to do that. I also admire AmeriCorps. My daughter participated in Teach for America, which is part of AmeriCorps. That’s a great program.

Business leaders you admire?

Steve Jobs, though I wouldn’t want to emulate everything he did. But like Bill Gates, he had a mind for business. He had a vision, and I am inspired by that in building my own company. There’s a big gulf between my company and Apple or Microsoft, but I can still keep working to make it better.

How are state budget problems affecting the public affairs profession?

Because the states are trying to raise revenues, they are looking at the lobbying profession and trying to raise registration fees. The registration fee in Ohio for years was $10. Now it is $25. There was an effort in Illinois to raise it to $1,000. It is now $300 there. That might not sound like a lot of money, but when you realize that a lot of companies have multiple registrations, it adds up. It makes companies think seriously about whether they should register. It’s going to have a big impact on this profession.

On the policy side?

Pay-to-play is a big issue. The procurement process is changing as states try to make sure there is not a connection between a contribution and a contract.

What’s on your iPod?

I have two iPads, and iPod, one iPhone, one Droid, a MacBook and a laptop. So I’m too connected. But musically, I’m all ‘70s, but no disco. That means Carly Simon, James Taylor, late Beatles. I had Carol King’s Tapestry on an eight-track tape player, if you remember what those were. I just moved it to my iPod. Also, I liked Fleetwood Mac even before they performed at Clinton’s inaugural.

This visit was courtesy of the Public Affairs Council’s October 2012 Impact newsletter.